Advices on quantum and further avoidable pressure on the junior bar

The Supreme Court has refused permission to appeal in the case of Aldred v Cham which concerns the costs of obtaining counsel’s advice in a case where a child is involved, and the approval of the court is required.

https://www.bailii.org/ew/cases/EWCA/Civ/2019/1780.html

This is a very familiar situation. The child claimant suffers an injury. The family instruct solicitors who successfully pursue a claim for damages. In most cases the approval of the court is required. CPR 21.10 says –

no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or protected party, without the approval of the court.

In these circumstances an advice on quantum will be needed from counsel or a solicitor. The cost of that advice was in the past, routinely recovered from the third party. But that was before the days of fixed costs. The right to recover costs and disbursements in such cases is limited to what is provided for in the rules. CPR 45.29I(2)(h) permits the recovery of –

any other disbursement reasonably incurred due to a particular feature of the dispute.

This phrase is at the heart of the Court of Appeal decision in Aldred v Chan. Is the need for advice a ‘particular feature of the dispute’? Coulson LJ relied on the decision of HHJ Graham Wood QC in Olesiej v Maple Industries which concerned a related argument over the recovery of translators fees. In that case, the claimant spoke little English. Judge Wood found that the need for this expense did not arise from a ‘particular feature of the dispute’.

“It seems to me that it arises out of a characteristic of the Claimant and not out of a particular feature of the dispute.”

In the same way, the need for advice arises because the claimant is a child and not because of a feature of the dispute –

“The fact that, in a particular case, a claimant is a child, or someone who cannot speak English, or who requires an intermediary, is nothing whatever to do with the dispute itself. Age, linguistic ability and mental wellbeing are all characteristics of the claimant regardless of the dispute. They are not generated by or linked in any way to the dispute itself and cannot therefore be said to be a particular feature of that dispute.” Coulson LJ

I actually think there is an arguable difference between the two. A claim for a child requires approval of the court pursuant to the rules. That requirement is surely a feature of the dispute i.e. it is one which will need to court's approval prior to settlement. But the position as we speak is that the costs cannot be recovered. The Supreme Court has refused permission to appeal because it does not raise a point of law of general public importance. They have however suggested that the rules committee might want to look at it.

There is surely a strong case for this to be a recoverable cost. Firstly because of the need for approval. But also but because it funnels further work away from the junior bar. Solicitors are not going to incur an expense that depresses their own recoverable costs. Many solicitors are able to provide these advices. I have done hundreds. But many do not want to. They should have the option of getting counsel’s advice where necessary. Equally the junior bar is under unique pressure especially at the moment.

https://www.legalcheek.com/2020/04/research-over-70-of-young-barristers-wont-survive-six-months-in-practice/

Any reform of the rules that removes this deterrent must be welcome.